Setting the Record Straight on SOPA: Some Evidence-Based Analysis

Ever since the Internet has fought back against the the Stop Online Piracy Act (SOPA), top supporters of the dangerous blacklist legislation have tried to mask its full consequences by misconstruing criticism and distorting the opposition’s position. On Saturday, former First Amendment lawyer and current representative of the MPAA and Director’s Guild, Floyd Abrams, wrote a disingenuous op-ed in the Washington Post that put all of Big Content’s misleading arguments and numerous strawmen in one place.

Let’s look at these claims one at a time. First, Abrams asserts:

[M]any critics of anti-piracy legislation acknowledge that a serious problem exists…yet seem unwilling to meaningfully address the problem. Google, Facebook and Twitter…have offered little in the way of solutions.

This is both misleading and factually untrue. When SOPA was written, technology companies were not allowed to offer solutions — they were completely shut out of the writing process. Since then, a bipartisan group of Congressmen — led by Rep. Darrell Issa (R-CA) and Sen. Ron Wyden (D-OR) — released an alternative to SOPA, called OPEN. While the bill is not perfect, it is a drastic improvement over SOPA that is narrowly targeted to the actual issue that would have significantly less impact on free speech.

For many critics, their objection is not to this or that provision but to the very concept that in some circumstances — and a copyright violation is one — what goes up on the Web must come down. The United States has never had a policy exempting the Internet from laws governing content. We cannot and should not.

Mr. Abrams does not and probably cannot link to the “many critics” who say this because there are none. No one is suggesting that copyright laws don’t apply to the Internet, which is why rightsholders already have ampletools at their disposal. For example, the Digital Millennium Copyright Act (DMCA) already allows copyright holders to send notice to websites to remove copyrighted content.

The proposition that efforts to enforce the Copyright Act on the Internet amount to some sort of censorship, let alone Chinese-level censorship, is not merely fanciful. It trivializes the pain inflicted by actual censorship that occurs in repressive states throughout the world. Chinese dissidents do not yearn for freedom in order to download pirated movies.

It’s not just critics that compare SOPA to China’s Great Firewall. MPAA Chairman and colleague of Mr. Abrams, Chris Dodd, looked to China last week when he said, "When the Chinese told Google that they had to block sites or they couldn't do [business] in their country, they managed to figure out how to block sites." Many Chinese Internet activists and bloggers have also seen similarities. And if Mr. Abrams is concerned about Chinese dissidents, he should also know that provisions in SOPA could pose a legal threat to many of the anonymity and circumvention tools Chinese activists use to get around the censors and avoid arrest.

None of this means that whatever legislation is adopted should not be carefully drafted to minimize even potential conflicts with principles of free expression.

Here is finally a statement where EFF and Floyd Abrams agree — but SOPA clearly does not minimize any conflicts with free expression. Even in his letter to Congress endorsing SOPA, Abrams admitted that SOPA will censor non-infringing speech, stating that “When injunctive relief includes blocking domain names, the blockage of non-infringing or protected content may result.”

Many First Amendment lawyers don’t take that result lightly. As a letter signed by over 100 other law professors observed, SOPA and Protect-IP “represents the most ill-advised and destructive intellectual property legislation in recent memory.”Harvard Law School’s Laurence Tribe, one of the nation’s foremost experts on constitutional law, wrote to Congress concluding the bill plainly violates the First Amendment because it “an overbroad scheme that will predictably result in depriving U.S. audiences of protected, non-infringing speech.”

SOPA would not just go after copyright infringers; it leaves no one on the Internet untouched. Twitter’s general counsel, Alex Mcgillivray, recently wrote a great hypothetical illustrating how site-wide censorship will affect millions of “ordinary, non-infringing users.” As Washington Post blogger Alexandria Petri remarked, “This isn't even throwing the baby out with the bathwater. This is bludgeoning the baby repeatedly with a sledgehammer and then throwing out the whole bathroom.”

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